Citation NR: 9712719
Decision Date: 04/14/97 Archive Date: 04/18/97
DOCKET NO. 94-37 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
Entitlement to service connection for a low back disorder.
Entitlement to service connection for left varicocele.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Andrew E. Betourney, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1943 to February
1946.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an April 1994 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois, which denied the veteran’s claims for
service connection for a low back disorder and left
varicocele. The veteran filed a timely appeal to these
adverse determinations.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that the RO was incorrect in
denying his claims for service connection for a low back
disorder and left varicocele. In support of his contention,
he maintains that he fell from a truck while in service,
causing injury to his low back and left testicle, and
currently suffers from low back pain and a left varicocele as
a result. Therefore, favorable determinations have been
requested.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met his
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that his claims for
service connection for a low back disorder and left
varicocele are well grounded.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the appeal has been obtained by the RO.
2. The veteran has not presented competent evidence that his
current low back disorder is related to any incident of
active military service.
3. The veteran has not presented competent evidence that his
current left varicocele is related to any incident of active
military service.
CONCLUSIONS OF LAW
1. The veteran’s claim for service connection for a low back
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The veteran’s claim for service connection for left
varicocele is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In order to establish service connection for a claimed
disability, the facts, as shown by the evidence, must
demonstrate that a particular injury or disease resulting in
a current disability was incurred in or aggravated coincident
with service in the Armed Forces. 38 U.S.C.A. § 1110, 1131
(West 1991); 38 C.F.R. § 3.303(a) (1996). In addition,
certain chronic diseases, such as arthritis, may be presumed
to have been incurred during service if they become manifest
to a compensable degree within one year of separation from
active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137
(West 1991); 38 C.F.R. §§ 3.307, 3.309 (1996). If a
condition noted during service is not shown to be chronic,
then generally a showing of continuity of symptoms after
service is required for service connection. 38 C.F.R.
§ 3.303(b) (1996).
The first step in this analysis is to determine whether the
veteran has presented a well-grounded claim for service
connection. In this regard, the veteran bears the burden of
submitting sufficient evidence “to justify a belief by a fair
and impartial individual that the claim is well grounded.”
38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81
(1990). Simply stated, a well-grounded claim must be
plausible or capable of substantiation. Id.
A well-grounded claim is established by competent evidence of
the following elements: a current disability (a medical
diagnosis), see Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992); Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992);
incurrence or aggravation of a disease or injury in service
(lay or medical evidence), see Layno v. Brown, 6 Vet.App.
465, 469 (1994); Cartwright v. Derwinski, 2 Vet.App. 24, 25
(1991); and a nexus between the in-service injury or disease
and the current disability (medical evidence), see Lathan v.
Brown, 7 Vet.App. 359, 365 (1995); Grottveit v. Brown, 5
Vet.App. 91, 93 (1993). Where the determinative issue
involves medical etiology, competent medical evidence that
the claim is plausible is required in order for the claim to
be well-grounded. LeShore v. Brown, 8 Vet.App. 406, 408
(1995). The nexus requirement may be satisfied by evidence
that certain chronic diseases, such as arthritis, manifested
themselves to a compensable degree within certain prescribed
periods, one year for arthritis. See Traut v. Brown,
6 Vet.App. 495, 497 (1994); Goodsell v. Brown, 5 Vet.App. 36,
43 (1993).
In reviewing the record, the Board observes that the
veteran’s service medical records were apparently destroyed
in the 1973 fire at the National Personnel Records Center
(NPRC) in St. Louis, Missouri. When service medical records
are presumed destroyed, VA is obligated to search for
alternate forms of medical records. Cuevas v. Principi, 3
Vet.App. 542 (1992). Therefore, the RO requested that the
veteran complete a NA Form 13055, Request for Information
Needed to Reconstruct Medical Data. The veteran completed
this form in February 1994, and the RO in turn forwarded it
to the NPRC for assistance in locating and reconstructing the
veteran’s service medical records.
In a response dated in March 1994, the NPRC stated that the
veteran’s clinical records, physical examination at
induction, and physical examination at discharge could not be
reconstructed. A search of the medical records from the
374th Engineer Regiment, Company A, for the period extending
from September 1, 1943 through January 31, 1944, revealed
only extracts from Daily Sick Reports maintained by the
Surgeon General’s Office (SGO). These extracts indicated
that the veteran went to sick call on three separate
occasions in December 1943, but did not state the purpose of
any of the visits. The NPRC response stated further that the
organization was unable to identify either the 80th or 180th
field hospital at Camp Hood, Texas, where the veteran stated
he had received treatment from September 1943 to January
1944. Finally, the NPRC noted that they could find no other
references to the veteran being sick, injured, or
hospitalized in their searches. Based on this evidence, the
Board is satisfied that the RO expended sufficient efforts to
assist the veteran in obtaining service records from
alternate sources.
In February 1994, the veteran underwent a VA examination. At
that time, the veteran reported having injured his back and
left testicle approximately 50 years earlier when he jumped
off a truck while in service. Clinical examination of the
veteran’s back revealed sensation to be intact to light-
touch, pinprick, proprioception, and vibration. Deep tendon
reflexes were symmetric, and both physiologic and plantar
responses were down going bilaterally. Straight leg raising
was negative bilaterally. Lumbosacral range of motion was
full throughout. The veteran could heel, toe, and tandem
walk without difficulty. X-ray examination revealed minimal
degenerative changes at L4-L5, with facet sclerosis
posteriorly. The examiner diagnosed status post trauma in
the remote past, with mechanical low back pain. This
appeared to result in a minimal disability for the veteran.
The veteran was also examined for trauma or disease of the
testes. Clinical examination revealed the penis to be
normal. The testes were palpable, and he had very mild
tenderness in the left testicle. There was no enlargement or
atrophy. No cords or nodules were appreciated. The veteran
exhibited moderate palpable veins which were dilated above
the left testicle in the upright position. They were stated
to be more dilated compared to the right side. The examiner
diagnosed a left varicocele, with an otherwise unremarkable
examination. The examiner further stated that the veteran
had a long-standing history of varicocele on the left, with
exacerbations a few times a week. These resulted in moderate
disability for the veteran.
A review of the medical evidence reveals no evidence which
corroborates the veteran’s reported in-service injury to his
low back and left testicle during service. However, even
assuming, arguendo, that this injury took place as alleged,
there is nothing in the claims file, other than the veteran’s
own contentions, which would tend to establish that the
veteran’s current low back disorder and left varicocele are
related to an in-service injury more than 50 years earlier,
including evidence of degenerative changes (arthritis) of the
low back within the first post-service year . The Board does
not doubt the sincerity of the veteran’s belief in this
alleged causal connection. However, as the veteran is not a
medical expert, he is not qualified to express an opinion
regarding any medical causation of either his low back
disorder or his left varicocele. See Espiritu v. Derwinski,
2 Vet.App. 492, 494-5 (1992). As it is the province of
trained health care professionals to enter conclusions which
require medical expertise, such as opinions as to diagnosis
and causation, Jones v. Brown, 7 Vet.App. 134, 137 (1994),
the veteran’s lay opinions cannot be accepted as competent
evidence to the extent that they purport to establish such
medical causation. Espiritu v. Derwinski, 2 Vet.App. 492
(1992). See also Heuer v. Brown, 7 Vet.App. 379, 384 (1995),
citing Grottveit, in which the Court held that an appellant
does not meet his or her burden of presenting evidence of a
well-grounded claim where the determinative issue involves
medical causation and the appellant presents only lay
testimony by persons not competent to offer medical opinions.
Thus, the Board finds that the veteran’s contention that his
current low back disorder and left varicocele are related to
an injury incurred while in the military many decades earlier
cannot be deemed competent evidence of the required nexus.
Therefore, given the lack of competent evidence establishing
that his claims are plausible, the Board determines that the
veteran has not met his initial burden of submitting evidence
sufficient to establish that his claims to entitlement to
service connection for a low back disorder and left
varicocele are well grounded and must be denied on that
basis.
In reaching these determinations, the Board recognizes that
these issues are being disposed of in a manner that differs
from that employed by the RO. The Board has therefore
considered whether the veteran has been given adequate notice
to respond, and if not, whether he has been prejudiced
thereby. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993).
In light of his failure to meet his obligation in the
adjudication process by not submitting adequate evidence and
because the outcome would be the same whether the claims were
treated as not well grounded or adjudicated on the merits,
the Board concludes that he has not been prejudiced by this
approach. See Edenfield v. Brown, 8 Vet.App. 384, 390 (1995)
(en banc).
The Board views its discussion as sufficient to inform the
veteran of the elements necessary to present well-grounded
claims for the claimed disabilities, and the reasons why his
current claims are inadequate. See Robinette v. Brown, 8
Vet.App. 69, 77-78 (1995).
ORDER
Evidence of a well-grounded claim not having been submitted,
service connection for a low back disorder is denied.
Evidence of a well-grounded claim not having been submitted,
service connection for a left varicocele is denied.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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